Citation Nr: 1525986
Decision Date: 06/17/15 Archive Date: 06/26/15
DOCKET NO. 11-15 195 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for a cervical spine disability.
2. Entitlement to service connection for a lumbar spine disability.
3. Entitlement to service connection for a right shoulder disability.
4. Entitlement to service connection for skin cancer, including as due to herbicide exposure.
5. Entitlement to service connection for epididymitis with partial orchiectomy of
the left testicle.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
K. M. Georgiev, Associate Counsel
INTRODUCTION
The Veteran had active service from March 1963 to May 1967.
This case comes to the Board of Veterans' Appeals (Board) on appeal from
decisions of the RO in Montgomery, Alabama, specifically, a February 2009 decision which denied service connection for cervical spine, right shoulder, skin cancer, and epididymitis disabilities, and a March 2010 decision which denied service connection for a lumbar spine disability.
A January 2014 Board decision remanded this matter, and it is again before the Board.
The Veteran testified at a videoconference hearing before the undersigned Veterans' Law Judge (VLJ) in April 2015. A transcript of the hearing is associated with the claims file.
The issues of (1) increased rating for posttraumatic stress disorder and (2) service connection for coronary artery disease have been raised by the record in an April 2015 statement submitted by the Veteran and an April 2013 written brief presentation, respectively, and the issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014).
Please note this appeal has been advanced on the Board's docket pursuant to
38 C.F.R. § 20.900(c) (2014). 38 U.S.C.A. § 7107(a)(2) (West 2014).
The issues of service connection for cervical spine, right shoulder, skin cancer, and lumbar spine disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.
FINDING OF FACT
The Veteran has notified the Board that he wishes to withdraw his appeal for entitlement to service connection for epididymitis with partial orchiectomy of
the left testicle.
CONCLUSION OF LAW
The criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
By statement dated and signed April 2015, the Veteran indicated his desire to withdrawn his appeal for epididymitis with partial orchiectomy of the left testicle. The Veteran and his representative also indicated such during the April 2015 Board videoconference hearing.
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.
ORDER
The appeal for epididymitis with partial orchiectomy of the left testicle is dismissed.
REMAND
The Board sincerely regrets the additional delay; however, adjudication of the Veteran's remaining claims without the benefit of additional development would be prejudicial to the Veteran.
Cervical Spine Disability
The Board finds that a new VA examination is required. First, the February 2011 VA examiner diagnosed cervical spine degenerative disc disease and found it less likely than not related to the 1966 accident "or due to some other etiology," rather, the examiner found the DJD "more likely consistent with age." Importantly, the February 2011 examiner put emphasis on an in-service plane accident in August 1966, when in fact the Veteran contends that his cervical spine disability had its onset while in parachute training in 1963.
Further, the Veteran has submitted treatise evidence which support his claim, that his cervical spine disability is the result of in-service parachuting; this evidence has not been considered by a VA examiner. Specifically, the Veteran's representative submitted several articles in an April 2013 Written Brief Presentation which support that military parachuting may lead to lasting injury, and the Veteran submitted a statement in March 2012 citing articles to support the link between degenerative joint disease and past traumatic injury.
In light of the above, the Board finds that there is competent evidence that the Veteran may suffer from cervical spine disability as etiologically related to service; however, the file does not contain sufficient medical evidence for VA to make a decision. As such, the Board finds that a VA examination is necessary to determine whether the Veteran has a current cervical spine disability related to his military service. See 38 U.S.C.A. § 5103A(d)(2) (West 2014); McClendon v. Nicholson, 20 Vet. App. 79 (2006).
Lumbar Spine Disability
The Board finds that a new VA examination is required. First, the September 2009 VA examiner diagnosed lumbar degenerative disc disease which was less likely than not related to service and more likely consistent with natural aging. The examiner referenced but insufficiently discussed the fact that the Veteran reported recurrent back pain on his separation examination, as well as his claimed parachuting injury in 1963.
Further, the Veteran has submitted treatise evidence which support his claim, that his lumbar spine disability is the result of parachuting; this evidence has not been considered by a VA examiner. Specifically, the Veteran's representative submitted several articles in an April 2013 Written Brief Presentation which support that military parachuting may lead to lasting injury, and the Veteran submitted a statement in March 2012 citing articles to support the link between degenerative joint disease and past traumatic injury.
In light of the above, the Board finds that there is competent evidence that the Veteran may suffer from a lumbar spine disability as etiologically related to service; however, the file does not contain sufficient medical evidence for VA to make a decision. As such, the Board finds that a VA examination is necessary to determine whether the Veteran has a current lumbar spine disability related to his military service. See 38 U.S.C.A. § 5103A(d)(2); McClendon.
Right Shoulder Disability
The Board finds that a new VA examination is required. First, the February 2011 VA examiner diagnosed resolved right shoulder AC separation and right shoulder strain which was less likely than not related to the 1966 accident "or due to some other etiology," rather, the examiner found the current right shoulder strain "more likely consistent with age." July 1963 service treatment records show the Veteran's right A/C joint was separated in a parachutist accident dated July 1963. Importantly, the February 2011 examiner put emphasis on an in-service plane accident in August 1966, when in fact the Veteran contends that his current right shoulder condition had its onset in 1963 when his A/C joint was separated.
Further, the Veteran has submitted treatise evidence which support his claim, that his right shoulder disability is the result of parachuting; this evidence has not been considered by a VA examiner. Specifically, the Veteran's representative submitted several articles in an April 2013 Written Brief Presentation which support that military parachuting may lead to lasting injury, and the Veteran submitted a statement in March 2012 citing articles to support the lasting effects of shoulder separation.
In light of the above, the Board finds that there is competent evidence that the Veteran may suffer from a right shoulder disability as etiologically related to service; however, the file does not contain sufficient medical evidence for VA to make a decision. As such, the Board finds that a VA examination is necessary to determine whether the Veteran has a current right shoulder disability related to his military service. See 38 U.S.C.A. § 5103A(d)(2); McClendon.
Skin Cancer Disability
The Board finds that a new VA examination is required. First, the February 2011 VA examiner diagnosed basal and squamous cell cancer, of the head and neck, as well as actinic keratosis. While the examiner opined that the skin conditions were less likely than not due to diabetes, the examiner did not address their relation to herbicide exposure.
Further, the Veteran has submitted treatise evidence which support his claim, that his skin cancer disability is the result of exposure to herbicides in-service; this evidence has not been considered by a VA examiner. Specifically, the Veteran's representative referenced an article in an April 2013 Written Brief Presentation which supports that exposure to arsenic causes squamous cell skin cancer and keratoses, and other tumorous skin problems. The Veteran submitted a statement in January 2012 with additional treatise evidence to support a link between basal cell carcinoma and other skin conditions with dioxin as associated with Agent Orange.
In light of the above, the Board finds that there is competent evidence that the Veteran may suffer from a skin cancer disability as etiologically related to service; however, the file does not contain sufficient medical evidence for VA to make a decision. As such, the Board finds that a VA examination is necessary to determine whether the Veteran has a current skin cancer disability related to his military service. See 38 U.S.C.A. § 5103A(d)(2); McClendon.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Cervical Spine Disability. Schedule the Veteran for an appropriate VA examination for his claimed cervical spine disability. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed.
After reviewing the file, and any pertinent evidence contained in the electronic claims file, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether the current cervical spine disability had its onset during military service or is otherwise related to service, to include the Veteran's 1963 parachuting jumps.
The examiner should also address the Veteran's treatise evidence, including that of the April 2013 Written Brief Presentation which supports that military parachuting may lead to lasting injury, and the Veteran's March 2012 statement citing articles to support the link between degenerative joint disease and past traumatic injury.
It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
The examiner should provide a complete rationale for any opinion provided. If the examiner finds that any opinion is speculative, the examiner must include rationale to explain why the opinion is speculative.
2. Lumbar Spine Disability. Schedule the Veteran for an appropriate VA examination for his claimed lumbar spine disability. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed.
After reviewing the file, and any pertinent evidence contained in the electronic claims file, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether the current lumbar spine disability had its onset during military service or is otherwise related to service, to include the Veteran's 1963 parachuting jumps.
The examiner should specifically address the May 1967 separation examination which notes recurrent back pain.
The examiner should also address the Veteran's treatise evidence, including that of the April 2013 Written Brief Presentation which supports that military parachuting may lead to lasting injury, and the Veteran's March 2012 statement citing articles to support the link between degenerative joint disease and past traumatic injury.
It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
The examiner should provide a complete rationale for any opinion provided. If the examiner finds that any opinion is speculative, the examiner must include rationale to explain why the opinion is speculative.
3. Right Shoulder Disability. Schedule the Veteran for an appropriate VA examination for his claimed right shoulder disability. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed.
After reviewing the file, and any pertinent evidence contained in the electronic claims file, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether the current right shoulder disability had its onset during military service or is otherwise related to service, to include the Veteran's 1963 parachuting jumps.
The examiner should address the July 1963 service treatment records which show the Veteran's right A/C joint was separated in a parachutist accident dated July 1963.
The examiner should also address the Veteran's treatise evidence, including that of the April 2013 Written Brief Presentation which support that military parachuting may lead to lasting injury, and the Veteran's March 2012 statement citing articles to support the lasting effects of shoulder separation.
It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
The examiner should provide a complete rationale for any opinion provided. If the examiner finds that any opinion is speculative, the examiner must include rationale to explain why the opinion is speculative.
4. Skin Cancer Disability. Schedule the Veteran for an appropriate VA examination for his claimed skin cancer disability. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed.
After reviewing the file, and any pertinent evidence contained in the electronic claims file, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether the current skin cancer disability had its onset during military service or is otherwise related to service, to include herbicide exposure.
The examiner should also address the Veteran's treatise evidence, including that of the April 2013 Written Brief Presentation which supports that exposure to arsenic causes squamous cell skin cancer and keratoses, and other tumorous skin problems, and the Veteran's January 2012 statement with additional treatise evidence to support a link between basal cell carcinoma and other skin cancers with dioxin as associated with Agent Orange.
It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
The examiner should provide a complete rationale for any opinion provided. If the examiner finds that any opinion is speculative, the examiner must include rationale to explain why the opinion is speculative.
5. Then, readjudicate the claims for service connection for cervical spine, lumbar spine, right shoulder, and skin cancer disabilities. In particular, review all the evidence that was submitted since the SOCs. If the benefits sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs